Opinion
12-26-1899
CRANE v. CRANE.
Charles E. Cook, for petitioner.
Petition for divorce by Elizabeth A. Crane against J. Townley Crane. Petition dismissed.
Charles E. Cook, for petitioner.
EMERY, V. C. The desertion set up as a ground for divorce in this case is a construetiredesertion. At the time of the separation which is relied on as constituting a desertion, the husband and wife were living together in a house owned by the wife. The parties were married in July, 1893, and lived together as man and wife up to May, 1894, when the wife ascertained for the first time that the husband was suffering from a loathsome venereal disease, contracted before his marriage. From the time of this discovery until October, 1896, they occupied separate rooms, and the wife nursed and cared for her husband, whose disease became worse. At last, according to the wife's evidence, which is the only direct evidence as to actual circumstances of the separation, the husband's condition became so loathsome that she could no longer care for him or nurse him, without danger to her health; "and on the day before he left," says the wife, "I talked to him about his condition, and told him something would have to be done; that my health was breaking down; no washerwoman would wash his clothes; they had to be burned or destroyed; the time had come when I could not handle the case any longer. And he said he would go to his brother's, at Port Jervis. He got angry, and said he would go if he had to walk. And we talked it over again next day. Then he left, took his satchel with him, and simply said, 'I am going.' but he did nothing about coming back." She further says that she could not take care of him any longer, and he knew it, and his condition was so filthy that he realized he would have to do something,—go to a hospital or somewhere else. Since the separation which thus occurred, neither husband nor wife has had any communication. The further examination of the wife and other witnesses as to conversations with the husband after his separation does not change the case on the material point of the circumstance of the separation. Had the disease of the husband been contracted after the marriage, it would seem that under our decisions the separation under the above circumstances might have constituted a case of constructive desertion by the husband, as based on a cruelty which was a cause for divorce. Cook v. Cook (1880) 32 N. J. Eq. 475, Runyon, Ch. But this cruelty relied on as the basis of constructive desertion resulted not, so far as appears, from any act of the husband since his marriage, but was the result of previous misconduct. I think that the only relief of petitioner, if she has any, against the man whom she took for better or worse, must be an annulment of the contract of marriage on account of the cruel and outrageous fraud which seems to have been perpetrated. Her conduct in refusing to live longer with her husband seems to have been entirely Justifiable, but to call his departure from her house, under the circumstance, a separation of the wife, would, in my Judgment, create a new cause of divorce, by adopting a construction of the statute relating to desertions which goes beyond the authority of the words of the statute or of any decision. I will advise a decree dismissing the petition without prejudice to filing a bill for annulment of marriage.